BAILEY T. STEEN | THURSDAY, AUGUST 23, 2018
At the heart of the United States Constitution is a question as old as time: “quis custodiet ipsos custodes?” For decades, this was the Latin phrase for any worthwhile sceptic, unwilling to grant a select few individuals unlimited oversight powers without the proper gridlocks in place. Although this language eventually died, of course, the translation lived on as a valid truth throughout judicial history: “who will be there to watch the watchmen?”
On the 10th of October, 2012, a 16-year-old boy by the name of Jose Antonio Elena Rodriguez, was a victim of such unchecked watchmen. According to a new report from The New York Times, Rodriguez was walking home alone at night when he was shot approximately 10 times through the U.S. border fence by one of the nation’s Border Patrol agents. He was murdered, drowning in a pool of blood with bullets in his back, just only a few blocks away from his family’s house in Nogales, Mexico.
The border agent, Lonnie Swartz, made the argument that it was self defence. He claims he mistook multiple teenagers, who were allegedly throwing rocks at the law enforcement agents, as random drug smugglers who tried crossing through the Mexico border through their childish antics.
Elena Rodríguez, the boy’s mother, doesn’t believe the watchman’s narrative.
Working with attorneys tied to the ACLU, the team argued that Rodríguez’s body was over a good 25 feet away from the sheer cliff where the border fence resides. They continue that the fence, built on the opposite side of the street, has watch towers that are approximately 40–50 feet above street level, giving credence to her narrative that the boy was “peaceful” and posed no legitimate threat to the officers before their bullets entered his backside.
This case, which has since spanned several years, should have already been resolved. In early August, the U.S. Court of Appeals for the Ninth Circuit, based in San Francisco, ruled that Mrs. Rodríguez could sue Swartz for a violation of her son’s forth amendment right to be free of excessive force by the state. Judge Andrew Kleinfeld wrote for the majority saying, based on all the presented evidence, “this is simple and straightforward murder.”
The dissent, represented in Judge Milan Smith, argued it’s ridiculous to have differing constitutional interpretations and selective enforcement across the states. He cited the similar Texas case of Sergio Hernández Guereca, another Mexican boy of 15-year-old who was shot in the back of the head by a U.S. border patrol officer for the same crime of throwing rocks.
“This is not a close case,” Judge Edith Jones wrote for the majority ruling in March. She argued that “aliens injured abroad” could only sue if Congress pay a law allowing such compensation. Without such a law, she wrote, federal courts should just not “interfere with the political branches’ oversight of national security and foreign affairs.”
The Guereca family was not allowed to sue, but the same can’t be said off Rodríguez. “This is an untenable result,” wrote Judge Smith in his recent dissenting opinion, urging the Supreme Court to resolve this contradiction for cross-country murder and the scale of constitutional protections.
In theory, an unbiased constitution shouldn’t vary in its justice and entitled protections based on the random whims of state judges and which patch of dirt people are on. If we’re to take the most conservative modern constitutional topic — the second amendment’s right to bare arms — it’s the perfect example of it stating “the people” have a guaranteed right that’s not just limited to citizens who were born on the right side of the border. In the case of the fourth amendment and all its following provisions, it’s a right also clearly granted to “the people”, including those across the border harmed by those working for U.S. government institutions.
In reality, however, as these conflicting state rulings continue to spawn, the question as to whether the constitution guarantees all people this freedom from excessive force is now stuck in limbo. Now it’s upon the justices of the majority-conservative U.S. Supreme Court to decide this newly divided fundamental: Is a Mexican citizen murdered on Mexican soil by U.S. border agents protected by the United States Constitution? Or is it just open season for those who dare throw stones at gun-touting borders?
This will be the framework of Hernandez v. Mesa and Rodriguez v. Swartz when they’re reviewed among the decided SCOTUS justices. Whether these boys will get their justice under a Trump court could be a case dead on arrival.
Thanks for reading!
Bailey T. Steen is a journalist, designer and film critic residing in the heart of Victoria, Australia. He’s also a proud Putin Puppet™ on occasion.
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